American Board of Information Security and Computer Forensics

By Paul France, MS, MEP, CEM, CHS-V

In order to keep our homeland safe and secure from another terrorist attack similar to 9/11, our nation’s intelligence gathering agencies have to be able to gather intelligence. Without intelligence, there are no “dots to connect.” Human intelligence is the most profound category of intelligence gathering; human intelligence, either using informants and/or interrogation techniques, tends to be the most valuable. Those who have direct insight into terrorist activities that provide information to U.S. intelligence agencies for whatever reason, are more reliable and detailed than other forms of intelligence, such as electronic surveillance.

If a subject that is involved with terrorist activity, either directly or indirectly, is unwilling to give information to U.S. intelligence authorities, information must somehow be obtained. For example, if a jihadist is captured on the battlefield, that person is subject to interrogation by his or her captors. To what lengths can or should intelligence officials go to in order to obtain information from suspected terrorists? There is an ongoing battle between those that believe water-boarding is an acceptable interrogation tactic to obtain information and those that believe it is a form of torture.

Torture is “the infliction of intense pain to punish, coerce, or afford sadistic pleasure” (Guiora & Page, 2006, p. 427). Cruel and unusual punishment, literally and figuratively speaking, is torture or punishment against prisoners and was officially outlawed in 1948 by the Universal Declaration of Human Rights (Bufacchi & Arrigo, 2006). The United Nations (U.N.) went further in discouraging the practice of torture and the development of torture techniques. In 1975, the U.N. passed the Declaration Against Torture, and 9 years later the General Assembly adopted the Torture Convention, which was ratified in 1987 (Bufacchi & Arrigo). Article I of the Torture Convention offers the following international definition of torture:

Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. (Bufacchi & Arrigo, 2006, p. 355)

It is important to realize that torture techniques are not solely physical; some of the most devastating forms of torture are psychological in nature and not necessarily fatal. One of the most debilitating types of torture, known as a Category III technique, is water-boarding (Guiora & Page, 2006). Water-boarding is when a detainee is either tied or held down so that there is no escape from a drowning sensation achieved either by immersion of the head or repeatedly pouring water down the person’s throat. There are both physical and non-physical aspects of this technique that many would argue are a form of torture. Detainees who have been subjected to water-boarding describe a fear of suffocation, and this prevention of breathing has led to several deaths of suspected terrorists during the interrogation process (Guiora & Page, 2006).

Why would any country resort to torture tactics? Law professor and legal commentator Alan Dershowitz (as cited in Bufacchi & Arrigo, 2006) makes frequent references to the so-called “ticking-bomb argument,” which justifies the use of torture based on the rationale that it serves as a deterrent against further acts of terrorism. The ticking-bomb argument supports the use of torture in instances when there are numerous civilian lives in danger, where there is an impending cataclysmic threat before which quick action must be taken, and when the captured suspected terrorist has information that could prevent the tragic event from taking place (Bufacchi & Arrigo, 2006). Torture is commonly used as an aggressive interrogation technique that is believed to be a “quick fix” to counter a terrorist threat by providing immediate and preventive information before it can occur.

In 2009, with the war in Iraq entering its sixth year, former Vice President Dick Cheney  still vigorously defends the use of torture tactics during interrogations by the administration of former President George W. Bush. Cheney has claimed that such measures saved lives and has stated, “I’ve seen a report that was written based upon the intelligence that we collected that itemizes the specific attacks that were stopped by virtue of what we learned through those programs. It is still classified. I can’t give you the details of it without violating classification, but I can say there were a great many of them” (as cited in Froomkin, 2009). In the days following the al-Qaeda terrorist attacks in New York City and Washington DC, former President Bush took several drastic, and what some would argue illegal, steps to protect the United States from suffering such an attack in the future. Six days after the attacks, he signed a secret “Capture, Kill, or Interrogate al-Qaeda Leaders” directive authorizing the CIA to use practically whatever means necessary to force suspected terrorists into revealing important security information (Lendman, 2008). This document also authorized the establishment of global networks to detain suspects and initiate interrogations without any type of government guidelines on how to treat these detainees being implemented (Lendman, 2008). In an October 11, 2001, memo written by Lieutenant Colonel Jerald Pfifer, the use of Category III interrogation techniques was approved for prisoners at the U.S. detention camp in Guantanamo Bay “to convince the detainee that death or severely painful consequences are imminent for him and or his family” (Guiora & Page, 2006, p. 427). Two months later, Department of Defense General Counsel William Haynes II received a memo from Deputy Assistant Attorney Generals Patrick Philbin and John Yoo stating that federal courts essentially had no jurisdiction with regard to the detainees being held at Guantanamo and were not able to investigate any reports of mistreatment or mistaken arrests of detainees (Lendman, 2008).

In the infamous ‘torture memo’ of 2002 that recently resurfaced, former Assistant Attorney General Jay Bybee stated, “that interrogation torture must take place over time, and therefore, mental strain from a long intense interrogation would not be considered prolonged unless it extended for a number of months or years” (Guiora & Page, 2006, p. 427). The Bybee memo claimed that it must be proven the interrogator intended to inflict protracted discomfort to the suspect before any act can be regarded as torture (Guiora & Page, 2006). This gave the CIA interrogators carte blanche to conduct interrogations as aggressively as they desired, employing torture tactics of extended duration regardless of the outcome. The first terrorist suspect to be subjected to torture on direct orders from the Bush White House was Abu Zubaydah, who was referred to by the former President in a September 2006 speech as “a senior terrorist leader and a trusted associate of Osama bin Laden” (Froomkin, 2009). Later it was determined that Zubaydah was not a major player within the al-Qaeda organization and knew nothing in the way of valuable information (Froomkin, 2009). He was an al-Qaeda recruiting officer and associate of Ibn al-Shaykh al-Libbi (or Libi) and assisted in terrorist training camp operations along the Pakistan-Afghanistan border during the early 1990s (Froomkin, 2009). His interrogation revealed no valuable intelligence information and only disclosed that Khalid Sheik Mohammed (code name “Mukhtar”) had masterminded the September 11 attacks. The CIA had already connected Khalid Sheik Mohammed to the ‘Mukhtar’ alias 2 weeks before the terrorist attacks (Froomkin, 2009).
Former FBI Special Agent Ali Soufan was involved in the early interrogations of Zubaydah and was able to befriend Zubaydah and gather some useful intelligence. This was not done through harsh interrogation techniques, but through numerous conversations and by gaining his confidence. Soufan engaged Abu Zubaydah in long discussions about his world view, which included a tinge of socialism. After Zubaydah railed one day about the influence of American imperialist corporations, he asked Soufan to get him a Coca-Cola in which Soufan complied (Isikoff, 2009). In addition, upon first making contact with Zubaydah, Soufan saw that he had been stripped naked and covered him with a towel. Soufan became frustrated with CIA interrogation tactics and informed FBI Headquarters of the harsh tactics being used to extract information from detainees (Isikoff, 2009). In addition, Soufan was involved in a couple of heated conversations with CIA interrogators complaining about their harsh tactics.

There are additional questionable interrogation tactics of the U.S. torture policy also worthy of consideration. U.S. citizen José Padilla (also known as Abdullah al-Muhajir or Muhajir Abdullah) was arrested in 2002 and detained for 2 years as an enemy combatant without officially being charged or tried for any terrorist acts (Cole, 2004, p. 8). When Padilla was first detained, the Bush Administration refused to provide specifics regarding the arrest beyond that this individual is “a bad guy” (Cole, 2004, p. 8). Very little in the way of useful information was received from the excruciating interrogation of Padilla, during which harsh interrogation tactics were employed. The Justice Department was also forced to admit that an American attorney, Brandon Mayfield had been wrongfully incarcerated based on faulty fingerprint information the FBI had received from a bombing site in Madrid. Mayfield, detained as a material witness was subjected to coercive interrogation for two weeks before the mistake was acknowledged and he was released (Cole, 2004).

Perhaps the most notorious failure of U.S. torture tactics to elicit valuable information was in the case of “Mukhtar,” Khalid Sheikh Mohammed. While his leadership role in the 9/11 attacks has been proven, his other claims while being interrogated are questionable at best. Mohammed claimed that he had been subjected to frequent and unrelenting torture techniques, including being held naked for days and humiliatingly interrogated by females and being suspended from the ceiling by his arms with his toes barely touching the floor of his cell, which caused him severe discomfort and an inability to sleep (Lendman, 2008). He was also beaten with electric cables, water-boarded several times, and was kept in a sensory deprivation state for a harrowing 4-month period (Lendman, 2008). In 2006, Khalid Sheikh Mohammed was transferred to Guantanamo, where the tortures continued. Physically and psychologically broken, he reportedly confessed without witnesses present to a barrage of crimes including plans to assassinate former Presidents Jimmy Carter and Bill Clinton, Pope John Paul II, and claimed responsibility for the murder of the Wall Street Journal reporter Daniel Pearl (Lendman, 2008). There is no evidence to support any of these claims, and the United States already knew that Ahmed Omar Saeed Sheikh from Pakistan had been convicted of Pearl’s kidnapping and execution in 2002 (Lendman, 2008). Khalid Sheikh Mohammed later admitted he fabricated those stories to please his captors.
According to experienced interrogators, torture is both unreliable and ineffective because the information it produces is unreliable due to the incapacitation and clouded memories of suspects (Human Rights First, n.d.). Furthermore, the use of such tactics and techniques can discourage actual suspected terrorists from disclosing any vital information. This is confirmed in the interrogation field manual published by the U.S. Army in September 2006, which states that torture represents a poor technique that yields unreliable results, may damage subsequent collection efforts, and can induce the source to say what he thinks the [human intelligence] collector wants to hear. FBI interrogator Joe Navarro added, “The only thing torture guarantees you is pain” (Human Rights First). The consequences of torture are illustrated in the case of suspected terrorist detainee Ibn al Shaykh al Libbi. After receiving physical and mental types of torture that included water-boarding and being stripped naked for extensive periods of time, al Libbi finally cracked and informed his interrogators that al-Qaeda had received training in Iraq in the use of biochemical weapons. Later, it was determined this revelation had absolutely no basis in fact and was merely concocted by the suspect to end his torture. However, the United States had acted on the tip without verification, and used it as one of the justifications for the war in Iraq. Torture does not coerce information out of suspects; it can actually prevent important national security information from being communicated because of the severe physiological toll it takes on suspects, which includes fainting, cardiac arrest, and even death (Human Rights First). When a suspected terrorist dies, whatever important information this individual may have had is carried to the grave.

Using torture under limited circumstances is nearly impossible to control because of its reputation as a quick fix, which makes the practice highly vulnerable to abuse. In addition, these tactics actually put American prisoners at greater risk of being tortured in retaliation from its harsh government tactics against detainees, many of whom have never been arrested or tried. Former presidential candidate Senator John McCain (R-AZ), himself a prisoner of war during the Vietnam War, noted based on his own personal experiences, “While our intelligence personnel in Abu Ghraib may have believed that they were protecting U.S. lives by roughing up detainees to extract information, they have had the opposite effect. Their actions have increased the danger to American soldiers, in this conflict and in future wars” (Human Rights First, n.d.). The U.S. Army’s field manual also concedes that the current U.S. torture tactics tend to undermine counterinsurgency efforts in the short-term and long-term. The threat of torture removes any attempt to achieve a rapport between interrogators and suspect that is necessary to produce successful results. The terrorist danger can only be addressed in an atmosphere of global cooperation and with the American overreliance upon torture, this has led to mistrust of the United States by its allies and critics alike. If anything, our harsh interrogation tactics may actually encourage the growth of terrorist networks to avenge abuses against predominantly Islamic suspects.

Despite the Department of Homeland Security’s assurances to the contrary, Americans are no safer today because of the illegal and unethical torturing of alleged terrorist suspects than they were prior to the 9/11 al-Qaeda attacks. Georgetown University Law Center Professor David Cole (2004) observed, “There is every reason to believe that they have made us less safe, by inspiring the unprecedented level of anti-Americanism so evident around the world. Anti-Americanism is the greatest threat to our national security” (p. 8). The highly controversial measures taken by the former Bush administration and the Department of Homeland Security it created have not improved security at home or overseas. Aggressive interrogation and torture tactics have contributed appallingly to the increased insecurity and instability throughout America and the rest of the world. In order for us as a nation to ensure our safety, prevention is the key. Prevention can only be effective through the gathering of intelligence and analysis of it. The question remains, how do we as a nation effectively extract/gather human intelligence from those captured on the battlefield, or anywhere else engaging in illegal terrorist activity?

References
Bufacchi, V., & Arrigo, J. (2006). Torture, terrorism and the state: A refutation of the ticking-bomb argument. Journal of Applied Philosophy, 23(3), 355-373.

Cole, D. (2004). Outlaws on torture. Nation, 278(25), 8, 28.

Froomkin, D. (2009). Bush’s torture rationale debunked. The Washington Post. Retrieved from http://voices.washingtonpost.com/white-house-watch/looking-backward/bushs-torture-rationale-debunk.html

Guiora, A., & Page, E. (2006). The unholy trinity: Intelligence, interrogation and torture. Case Western Reserve Journal of International Law, 37(2/3), 427-447.

Isikoff, M. (2009). We could have done this the right way. Newsweek Magazine. Retrieved from http://www.newsweek.com/id/195089

Lendman, S. (2008). Torture as official US policy. The Populist Party. Retrieved from http://www.populistamerica.com/torture_as_official_us_policy

Human Rights First. (n.d.). Why torture makes us less safe. Retrieved from http://www.humanrightsfirst.org/us_law/etn/primetime/safe.asp